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To CUE, Or Not Worth It?

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Three weeks after I got out of the Air Force in 1974, I spent a few weeks in a VA hospital for Hepatitis (apparently a parting gift from my processing out physical or dental exam).  While there, a VSO filed a claim for me.

The actual filing is not in my C-file, so I'm not certain what exactly he wrote, BUT...

While active duty, my STRs contain numerous medical and psychologist reports of depression, sleep disturbances, fatigue, nervousness, etc. that were not part of my life before the Air Force.  (Some relationship and family issues while I was away from home were the "triggers" that sent me spiraling down the black hole of depression.)

Instead of discharging me for depression, the Air Force hung a "Personality Disorder Not Otherwise Specified" on me and gave me a General Under Honorable discharge based on that.

A brief, poorly written 1974 Decision Letter granted SC for the residuals of Hepatitis, as well as for lumbar spine disability.  It then said that my claim for my "nervous condition" could not be adjudicated because SC for "nervous condition" was not a compensable disabilty under the law.  (I don't have the letter in hand, so I'm working from memory.  I will try to find the actual letter, I do have it.)

There was no mention of a right to appeal.  Upon asking the VSO about the denial and a right to appeal, it was explained to me (in so many words) that the appeals process is for arguing about a denial, but there was no right to appeal a condition that VA legally could not consider as a compensable disabilty.

I wonder if this is an "unadjudicated" issue for which I should file a CUE claim, for the following reasons:

1.  In examining my STRs, VA should have seen the reports/treatment for depression, etc. and considered depression and associated symptoms as the "nervous condition".  At the very least, they should have adjudicated a "sympathetic" claim for depression upon discovering that it existed.

2.  In blanketly stating that a condition would not be compensable under the law,  VA then did failed to adjudicate the issues, and would not have allowed appeal because of their erroneous determination that it was not a valid claim.  I've had a few people say I should have appealed, but there was nothing to appeal.  The claim wasn't denied, it was dismissed as unallowable.

3.  In 2010, a VA C&P psychiatrist opined that, based on STRs and my history since then, my long-term (Dysthymic) Major Depressive Disorder actually began in 1973, during my active duty in the Air Force.  It was then rated at 70% (Effective Date 2009), and reduced to 50% in 2011.  

While I was recently granted (by BVA) TDIU and SMC(s) back to 2009, I still feel that I was wronged by the 1974 decision that my claim was invalid.  Maybe nothing would come of a CUE claim, but I wonder if I shouldn't do it just to make myself feel better about it.  I know that the Air Force did not cause my problems with depression;  it was caused by my brain's response to some bad situations.  However, it felt like once I became a bit "defective", they wanted to dump me like a hot potato, and used a convenient method to wash their hands of me and my problems.

 

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This is the CUE claim I wrote for you- you can change it and tweek it, and others will chime in too (I hope).

This must be filed with the VARO in N Carolina that denied the claim in 1974.

 

This is a claim of CUE ( Clear and Unmistakable Error), in your July 11, 1974 decision to me ,( as enclosed), under auspices of 38 USC 5109.

 

The violations of established VA case law and regulations at time of this decision are as follows are as follows:

 

38 CFR 4.6:

 

 

 

 

 

§ 4.6 Evaluation of evidence.

The element of the weight to be accorded the character of the veteran's service is but one factor entering into the considerations of the rating boards in arriving at determinations of the evaluation of disability. Every element in any way affecting the probative value to be assigned to the evidence in each individual claim must be thoroughly and conscientiously studied by each member of the rating board in the light of the established policies of the Department of

Veterans Affairs

to the end that decisions will be equitable and just as contemplated by the requirements of the law.

https://www.law.cornell.edu/cfr/text/38/4.6

The violation occurs in this VARO statement:

“Your nervous condition is not a disability under the law for which compensation may be paid.”

 

However “nervous condition WAS a disability as of March 1974, as per this BVA decision,

 

 

REMAND Additional development is warranted with respect to the issue of entitlement to service connection for a psychiatric disorder other than PTSD, (also claimed as a nervous condition), for the portion of the appeal period extending from March 18, 1974 to November 25, 1991. “

https://www.va.gov/vetapp11/files2/1113967.txt

 

The BVA also states,in this case:

 

Subsequently, the Veteran's representative has maintained that the 2008 VA examination is inadequate. In arguments presented in July 2008, she maintained that the March 2008 VA examination was inadequate as it did not address whether the condition(s) diagnosed in 1974 were correct and whether a diagnosis of PTSD was warranted/supported at that time. In arguments presented in September 2009, she maintained that the Veteran's problems treated in 1974 were early manifestations of PTSD, and hence should be considered a "primarodial" form of PTSD. In this regard, she has requested that the VARO address the provisions of 38 C.F.R. § 4.125(b), pertaining to a change in diagnosis of a mental condition. The provisions of 38 C.F.R. § 4.125(a) (2010) state that if the diagnosis of a mental disorder is changed, the rating agency shall determine whether the new diagnosis represents progression of the prior diagnosis, correction of an error in the prior diagnosis, or development of a new and separate condition. If it is not clear from the available records what the change of diagnosis represents, the rating agency shall return the report to the examiner for a determination.”

https://www.va.gov/vetapp11/files2/1113967.txt

 

And obviously

I did not receive a C & P regarding the “nervous condition”, and I request that,since I had been diagnosed with service connected lomg term (Dysthymic) (Major Depressive Disorder)which a VA psychiatrist, in a 2010 C & P stated ,had begun 1973, during my active duty in the US Air Force, granted as service connected back to 2009, and I was awarded TDIU and SMC (S) by the BVA, in 2009, that this supports the violation of 38 CFR 4.6 as well as basic and longstanding  VA case law,thus:

 

29 FR 6718, May 22, 1964

Part 4—Schedule for Rating Disabilities

 

Authority:  38 U.S.C. 1155.

 

Source:  29 FR 6718, May 22, 1964, unless otherwise noted.

 

 

Subpart A—General Policy in Rating

 

4.1       Essentials of evaluative rating................................................. 4.1-1

4.2       Interpretation of examination reports...................................... 4.2-1

4.3       Resolution of reasonable doubt............................................... 4.3-1

as well as 38 CFR 4.6

 

  1. Source https://www.benefits.va.gov/warms/bookc.asp#c

  2. I was fully in sound condition when I entered the Miilitary.

    Obviously that changed. I had claimed a “nervous disorder”in the 1974 claim, however the Court has made this fact clear:

    This Court recently interpreted the holdings of Ephraim and Boggs in Clemons v. Shinseki,

    23 Vet.App. 1 (2009). In that case, the Court determined that an initial claim for a particular mental

    condition submitted by a pro se claimant

    cannot be a claim limited only to that diagnosis, but must rather be considered a claim for any mental disability that may reasonably be encompassed by several factors including: the claimant's description of the claim; the symptoms the claimant describes; and the information the claimant submits or that the Secretary obtains in support of the claim

  3.  

    Id. at 5. The Court reasoned that "t is generally the province of medical professionals to diagnose

    or label a mental condition, not the claimant" because as a layperson, a claimant is not generally

    competent to render a diagnosis. Id. At 6. “

    Source:

    UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS

    No. 07-1704

    M ICHAEL VELEZ, APPELLANT,

    V.

    E RIC K. SHINSEKI, SECRETARY OF VETERANS AFFAIRS, APPELLEE.

    On Appeal from the Board of Veterans' Appeals

    (Decided October 9, 2009 )

 

https://www.uscourts.cavc.gov/documents/Velez-1704.pdf


 


 


 

Since I was deprived of a C & P exam, due to the erroneous statement in the denial, as to not havng a compensable disability, which I did have, the C & P exam would have garnered me the correct Depression diagnosis at that time, as well as a proper compensable rating. The clear and unmistakable error on your 1974 denial enclosed, had manifested an altered outcome, to my detriment.


 

Respectfully

Enclosures: List here

the1974 decision

and any other the other inks to VA and CAVC etc.


(sorry for the bullet numbers- cant get them off the post-)

others will chime in and add anything they feel cOuld help ( VA case law only)  

 

 


 


 


 

 

 

Edited by Berta
added brackets to Court decision
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Thank you so much, Berta, it is just so nice that you've done all of that for me!  I have ordered a copy of my Service Records and a new copy of my C-File, so I can go through them and find any/all applicable evidence to include.

I didn't know about filing them with Winston-Salem (NC) VARO, either, so I'm glad to know the correct place to begin.

When I get my evidence package together, I will copy it to you before I send it off.

I'm excited to have a new project.  Between this and trying to upgrade my discharge from "General Under Honorable" (due to Personality Disorder N.O.S.) to an "Honorable" (due to  Depression) I think I'll have plenty to keep my mind occupied.

Should I hold off on the CUE until they get my recent TDIU & SMC claim promulgated, or would this have no effect on it?

Thanks again, and I wish you a Happy New Year!

 

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"Should I hold off on the CUE until they get my recent TDIU & SMC claim promulgated, or would this have no effect on it?"

You can hold off on the CUE- if you wish- I hope others here will chime in on it-

also I feel there might be something at the OGC or CAVC that would be more icing on the cake, so I will try to find more legalize-but I do think the CUE is well covered as above.

When I filed a SMC CUE in 2003( I think it was first one I filed) and it sat at the VARO for almost 9 years ,

I began to even doubt myself on the basis of the CUE...finally it was set for BVA transfer and by then I was thrilled because I was again confident I could succeed.

As it happened the Nehmer VARO was handling my AO IHD claim, by 2012 , and I sent them a letter asking them to adjudicate not only the SMC CUE , filed way before the AO IHD claim but also to adjudicate the 2004 CUE I had that I dont think VA did anything with- 1151 IHD claim ( I told VA recently that this claim is still an open issue-) because this claim was critical for a proper AO IHD award.

Nehmer Philadelphia RO awarded the SMC CUE as well as direct SC for the AO IHD ( I have 4-5 CUES pending on the Nehmer decision) and it appears the 1151 IHD claim is still open.

I need to make a point I might have forgotten in our 1151/FTCA forum on that----this tread reminded me-

It is often very beneficial to file both 1151 and FTCA over wrongful death cases.

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Another CUE beauty back to 1972:

It is a long read but I put some specific parts here:















 

 

 







 



 

https://www.va.gov/vetapp01/files02/0117584.txt

With your STRs and discharge certificate,I do not see how the VA could "refute"

anything because they did not even give you a C & P exam.

Even if this vet only got a 10% back to 1972, that is a nice 29 years chunk of change.

 


 

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One more point- tyhe weather is affecting my PC:

https://www.veteranslawblog.org/va-compensation-exam/

In this interesting article by Vet lawyer Chris ATtig he makes these points:

"And then there is always the BIG problem in VA Compensation and Pension Exams….

That problem is that the VA doctors that are assigned to do them RARELY have expertise in the medical condition that they are evaluating.

Many VA Compensation and Pension Exams are – in my opinion and experience – “junk science”.

Or the VA just sends you to someone that shouldn’t be rendering an opinion in the first place – someone like a nurse or a med school intern.

and

"The BVA said: “In determining whether the duty to assist requires that a VA medical examination be provided or medical opinion obtained with respect to a Veteran’s claim for benefits, there are four factors for consideration. These four factors are:

In this recent decision, the BVA focused on the third factor, stating that it is a “low threshold”  and “requires only that the evidence indicate that there may be a nexus between a current disability or symptoms and the Veteran’s service”, including…

 

How do you start to find these errors – or more important…..

"If the VA did not offer you a C&P exam, there really are only two reasons:

  • the VA messed up and did not offer one when they should have, or
  • the Veteran didn’t provide enough information to trigger the Duty to Assist.

If your claim for disability compensation was denied, and you did not receive a C&P examination from the VA, it is more likely than not that the VA made an error."

Chris didnt give a BVA citation for that case above but you had fulfilled the criteria when they denied.

I Dont think you need at add much at all to the above CUE-but it seems there is a wealth of info in your favor- 

and Thank you! You knew something was wrong with that decision.

 

 

 

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Berta, great stuff! 

I have found that there are hundreds of cases on the BVA "Decision Search" which establish that even back as far as the 1940s, a claim for "nervous condition" was a valid claim for any of a number of mental health issues including depression.   VA has seemingly always (at least since the 1940s) considered "nervous condition" a disability which certainly could be compensated under the law, PRIOR TO my 1974 claim:  in many, many cases, the condition claimed was "nervous condition", and was apparently adjudicated and granted or denied by a VARO or BVA.

I just stumbled across these BVA decisions that granted an Earlier Effective Date in circumstances similar (not exactly, but similar) to mine.  What is interesting is that in this one case (4/9517775), the veteran was never C&P evaluated or rated until he was granted SC and a 30% rating in 1991, raised to 50% in 1992.  The BVA didn't find any problem with that rating percentage, but they did award an EED of 1969, apparently at 50%.  The 50% was based on his C&P exam and appeal granted 20+ years later!  In the other one, the C&P and rating were done 16 years after the original claim and eventual EED.

This suggests to me that the VA should probably grant me 70% (or at east 50%) back to 1974, should they agree that there was CUE in the VARO decision that my claim for "nervous condition" was not legal.  I don't think there's any question that the VARO failed to correctly apply the law when they chose to ignore my claim based on obviously faulty logic.  They really screwed up when they could have simply adjudicated it, then denied it for whatever reason.  

Where did I find these decisions?  Why, on an old post here on hadit!!!  Awwwweeeesome!  I'm feeling like my case grows stronger every day!

I know that old saying that the only certain things in life are death and taxes, but I think I have a real shot at a win here.

https://www.va.gov/vetapp95/files4/9517775.txt

https://www.va.gov/vetapp99/files4/9932208.txt

 

 

Edited by acesup
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